from the not-how-that's-supposed-to-work dept

The DMCA takedown notice allows rights holders to perform targeted removals of infringing… I can't even finish that sentence with a straight face. IN THEORY, it can. In reality, it often resembles targeting mosquitoes with a shotgun. Collateral damage is assumed.

Case in point: Internet Brands recently issued two takedown requests to protect some of its cruelty-free, farmed content originating at LawFirms.com. It's this phrase -- taken verbatim from LawFirms' "Penalties for Tax Evasion" -- that has triggered the takedown notices from Internet Brands.

Tax evasion refers to attempts by individuals, corporations or trusts to avoid paying the total amount of taxes owed through illegal means, known as tax evasion fraud.

The second (at least according to Google's non-numeric sorting) is a repeat of the first, except for the addition of a Techdirt post. At first glance, the targeting of this article by Tim Geigner -- "Dear Famous People: Stop Attempting Online Reputation Scrubbing; I Don't Want To Write Streisand Stories Anymore" -- would appear to be exactly the sort of behavior Dark Helmet was decrying. But it isn't.

The phrase triggering the Internet Brands takedown can be found in a very late arrival to the comment thread, more than one-and-a-half years after the original post went live. It opens up with this:

This is a very interesting. I read the whole article at New York Magazine. So someone is accused of tax evasion and then charges are dropped and then tries to clean up his reputation.... nothing wrong with that.

Then, for no apparent reason, the commenter drops in the LawFirms.com paragraph highlighted above.

Now, here's the problem. If blogs and other sites are reposting others' content without permission, that's one thing. But targeting whole posts for delisting just because a commenter copy-pasted some content is abusive. It could very possibly take out someone else's created content -- covered under their copyright. Using a DMCA notice in this fashion can allow unscrupulous rights holders to bypass Section 230 protections -- effectively holding site owners "responsible" for comments and other third-party posts by removing the site's original content from Google's listings.

From the looks of it, Internet Brands did nothing more than perform a google search for this phrase and issue takedown notices for every direct quote that originated from somewhere other than its sites. It didn't bother vetting the search results for third-party postings, fair use or anything else that might have made its takedown request more targeted. Internet Brands doesn't issue many takedowns, so it's not as though its IP enforcement squad had its hands full. In fact, there's every reason to believe actual humans are involved in this process, rather than just algorithms -- all the more reason to handle this more carefully. Here's a little bit of snark it inserted into a 2014 DMCA takedown notice.

The interview and photos are published on our website and permission hasn't been granted for anyone else to republish them. Not only is the content stolen it out ranks our website in a Google search for the keyword "th taylor". So much for Google being able to identify the source of original content!

If a company has the time to leave personal notes for Google (which doesn't have the time to read them), then it has time to ensure its requests aren't targeting the creative works of others just to protect its own. The DMCA notice is not some sort of IP-measuring contest with Google holding the ruler. If Internet Brands thinks it is -- or just hasn't bothered to vet its takedown requests before sending -- it's usually going to be the one coming up short. If Google doesn't ignore the request, those on the receiving end of a bogus takedown will make a lot of noise. Either way, it''s accomplished nothing.

from the wanna-try-that-again? dept

On Friday, we had a post about some political comic strips that were posted to the Tumblr blog A Good Cartoon. Whoever is behind that blog (on the blog the name used is "rorus raz," and the post asks people to credit rorus raz, but on Twitter it's "Alan Smithee" which is a popular pseudonym) first posted a bunch of political cartoons by syndicated political cartoonists that demonstrated a near total lack of understanding about net neutrality, and then posted a followup post that took many of those political cartoons and replaced the bubble text with the simple statement "the cartoonist has no idea how net neutrality works." Well-known TV, book, podcast and internet personality John Hodgman then reblogged it on his site.

I first saw it on Hodgman's site and set it aside to write about it. When I got around to it late on Friday afternoon, I noticed, oddly, that the original on A Good Cartoon was now gone. There was no note or anything. It was just gone. However, Hodgman's version was still up, so I wrote about it and posted some (but not all) of the comics and added some additional commentary.

Over the weekend, however, the version on Hodgman's site also disappeared, and Twitter user Michael at BU alerted me to the news that over at A Good Cartoon a DMCA takedown notice had been posted. It appears that the copyright holder representing the cartoonist Chip Bok sent Tumblr a takedown. What's posted to the blog is what Tumblr sent to A Good Cartoon, and not the original takedown notice -- so it's not clear if it was sent via Bok himself or Creators Syndicate, which syndicates Bok's strips. Bizarrely, the notice that's posted to A Good Cartoon is not text and not a single image, but rather each word is a separate image. I have no idea why, but here's the transcribed note:

Hi,

We've received a notification of alleged copyright infringement on one of your blogs. Here are the details of the content in question:

Description: The work is a copyrighted cartoon by artist Chip Bok. The caption of the cartoon was altered, but the copyright and signature remain, making it look like this work is by the artist, when it is not. You can find an original copy of the cartoon here: http://www.creators.com/editorialcartoons/chip-bok/31500.html

The content has since been removed, in accordance with U.S. law and Tumblr's own copyright policies.

At Tumblr, we implement a strict three-strike policy against copyright infringers. The notice we received counts as one strike against your account. If you receive three uncontested strikes within 18 months, your account will be terminated. You can contest this notification by following the instructions for a DMCA Counter-Notification found here: https://www.tumblr.com/policy/terms-of-service#dmca. A successful counter-notification will remove the strike against your account.

Please note that if your account is terminated for repeat copyright infringement, any new accounts you create will also be terminated.

It would appear that the cartoonist has no idea how fair use works (and the same may be true of Tumblr's "Trust & Safety" staff). Yes, fair use is often a judgment call, but it's difficult to see how this is not classic fair use. It was transformed (as the Tumblr letter even admits), and the transformation was done for the purpose of commentary and criticism of the original -- classic parody, which the courts have recognized as quintessential fair use. Finally, it was not done for commercial reasons and the impact on the market for the original is clearly none (other than the fact that it might make Chip Bok look foolish -- but the courts have been clear that it needs to be the copying, not the commentary that harms the market, and that's clearly not the case here -- i.e., the question is whether or not the copied work might substitute for the original in the market).
To better understand this, we'll post both versions here (which again is fair use, should Bok or his syndicate suddenly wish to try to play this stupid game on us as well). Here's the original:

The line in the bubble doesn't make any sense at all in the context of net neutrality, nor does the message on the TV itself. As we stated in our post on Friday, we already know that the big broadband providers have been the ones who have been deliberately slowing down access to Netflix, resulting in images like the following appearing on people's screens without net neutrality:

And, of course, once Netflix agreed to pay up, suddenly the big ISPs magically figured out how to plug in a few more connections and the speeds went back up:

Part of the point of the FCC's new rules is to prevent this sort of gaming by the big broadband players so that you won't have to see any delay messages at all when downloading a film. So, given all that, it's rather easy to conclude that Chip Bok has no idea how net neutrality works. And, given that, a fairly good way to parody Bok's ignorance is to post the following cartoon:

A Good Cartoon's response to the DMCA takedown is to note, "i'm astonished that chip bok believes people could confuse something he made with something that's actually funny and intelligent." Of course, being embarrassed about a parody does not make it infringing. It's still fair use. So, the most likely conclusion is that Chip Bok (and/or his syndicate) has no idea how fair use works.

Update: Over at his own site Bok is insisting this is not fair use and tossing out all sorts of nonsense about how he's older than everyone and thus understands these things better:

Really, you people should stop hacking my cartoons to make a point. It’s not “fair use”. It’s illegal. Think the FCC will help me out here? You’re destroying my intellectual property and inserting your own stupid message. Are you Chinese? Come up with something on your own.

This is especially funny since Bok's own site is called "Bokbluster" a clear play on the name of "Blockbuster." And, of course, that's a perfectly legitimate way to make use of something someone else created. But, Bok is so hypocritical that apparently he thinks that only he is allowed to build on another's work. Even worse, it appears he's racist, calling someone "Chinese" for criticizing him. That's incredible. And, on the copyright question, Bok is wrong. It is absolutely fair use, as described above. And his "intellectual property" is not being "destroyed" just because someone created a parody. That's not how it works. At all. His further comments show a complete lack of understanding about net neutrality as well. He mis-states the law in question, he mis-states what the FCC has done. Someone really ought to take him aside as suggest he just stop digging.

from the haven't-we-seen-this-before dept

Editor's note: The following was sent over by Jonathan and New Media Rights, concerning Jonthan's ridiculous situation of being held hostage by Viacom. What strikes me as particularly interesting is that Viacom has been sued about this kind of thing before (involving Colbert Show clips) and resolved that by promising to take fair use into account. Apparently that's gone out the window.

On February 3rd 2015 my remix video entitled "Too Many Dicks on the Daily Show" was
removed from YouTube via a bogus takedown from Viacom claiming copyright infringement.

The remix is a transformative work critical of the gender disparities on The Daily Show and constitutes a fair use of copyrighted visual material as provided for in section 107 of the US copyright law.

This is the second time Viacom has abused the DMCA takedown process to prevent this particular fair use video from being seen. It's especially ironic considering each episode of The Daily Show relies on the fair use doctrine in order to satirically comment on mainstream news broadcasts. I am currently appealing this latest takedown with the help of my attorneys from New Media Rights.

Back in August 2013, after nearly 2 years on YouTube, my remix was also removed without warning by Viacom claiming infringement for "visual content" from The Daily Show. I immediately informed my attorneys at New Media Rights who in turn contacted Viacom to inquire about the takedown. Quickly thereafter I received an automated message from YouTube stating that Viacom had rescinded their copyright infringement claim. Viacom provided no other information or explanation but the video was again viewable on YouTube and so I assumed the matter had been resolved. Roughly a year and a half later I find myself dealing with the same exact situation.

As I explained in my original blog post, the video is presented as an episode of The Daily Show with Jon Stewart which is interrupted by a remixed critique of the show's gender imbalance and "boys' locker room" comedy stylings. The remix was created with clips borrowed from over 100 episodes of The Daily Show combined with a portion of the Flight of the Conchords song "Too Many Dicks on the Dance Floor" in order to subvert both sources.

Made in 2011, the video was meant to highlight the lack of women in on-screen or leading creative roles on The Daily Show over its 17-year run. At the time only 3 of the 12 regular correspondents/contributors on The Daily Show were women. Only 2 of the 16 writers were women and the numbers have not improved much in the 4 years since I published the critique (although Jessica Williams is a brilliant addition to the cast).

On both occasions Viacom has abused the DMCA takedown system to remove my video, which has resulted in an unjust strike placed against my YouTube account. On both occasions I've been temporarily locked out of my channel and forced to attend YouTube's copyright school and pass a test on fair use. This is particularly patronizing since just over a year ago YouTube invited me to their space in Los Angeles to give a lecture on transformative storytelling and to specifically highlight the fair use questions that arise when remixing video footage for the purposes of political parody.

I should also note that YouTube currently features another one of my remix videos as an example of fair use video on their official page explaining the fair use doctrine to their user base.

Again, I'm in the process of trying to get my video back online. For now you can watch it over at the Internet Archive.

One last note: New Media Rights has offered me invaluable advice and guidance throughout these battles. They are a small, non-profit, two-lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can, please consider donating to them here.

from the no-doubts-about-it dept

So, we just had a story about German-based Total Wipes issuing a series of increasingly bizarre takedown notices, including one that tried to claim that basically any website with the URL "download" was infringing (including the URLs of tons of popular software, from Skype to Open Office to Evernote). The company has now responded to the takedowns, insisting that it's all no big deal because it was all just a software bug. "No doubts about it," the company says:

Due to several technical servers problems on the first February week (from the 2nd to the 8th) our script sent hundreds DMCA to hundreds domains not related at all with any copyrights of our contents. Taking a look at https://www.chillingeffects.org/notices/10420406 is pretty clear that for a few hours only the word "download" has been used by the script and that caused several illegal and wrong DMCA requests. It was our fault, no doubts about it. The DMCA is a serious issue and it must be carefully managed. Google rejected most of these DMCA but we totally understand the damage of it for small and medium companies that have to remove and manage them manually. It was a bug just on that week and this is not our daily routine, 99% of our found/removed links are about people that steal music and make moneys illegally. However, our Anti-piracy system has been taken down a week ago in order to add more improvements and avoiding further trouble about the DMCA sending.

Of course, that would be slightly more plausible if Total Wipes hadn't done something similar just a few months ago, trying to take down every URL with the word "coffee" in it. Given that, the "it's just a bug" excuse doesn't seem particularly believable.

However, even if we take Total Wipes at its word, that this is not the company's "daily routine," this still demonstrates how problematic any system for automatically issuing takedowns is for concepts such as free speech. If you're issuing DMCA takedowns you are, by default, stifling speech. You can argue that it's acceptable if that "speech" is nothing more than infringing on someone else's work -- and there's a reasonable argument to be made there. But it is immensely problematic when you combine the default "take this down!" nature of the DMCA with the automated efforts to issue such notices. It becomes not a tool to stop infringement, but rather a widespread tool of censorship, thanks to a broken copyright law.

from the Brittain:-'I-feel-I-still-have-more-reprehensible-stupidity-to-offer' dept

The DMCA takedown system is once again being abused by Craig Brittain. The recently deposed king inadvertent court jester of the revenge porn world -- defenestrated by the FTC no less -- has issued a new bogus takedown request in hopes of purging the internet of critical articles.

But what takes it into truly surreal territory is Brittain's seeming inability to realize just how hypocritical his request is. For someone who made a living posting photos and contact information without permission (and made a further living pretending to be a "takedown lawyer" who could make the unauthorized photos and contact info vanish for the right price), he seems suddenly very sensitive about the use of photos and personal information. Or at least the use of his, anyway. From the takedown request hosted at Chilling Effects:

Unauthorized use of photos of me and other related information. Unauthorized use of statements and identity related information. Unauthorized copying of excerpts from isanybodydown.com. Using photos which are not 'fair use'.

[For whatever reason, Brittain claims the infringed item is a "book," which one must admit would be quite the conversation starter, ender and shatterer of friendships/marriages, should the now-dead "Is Anybody Down" website have been published as a glossy, hardbound coffee table-type book.]

Desperate times call for desperate measures, I suppose, and for someone who only knew how to profit off the misery of others, a lifetime ban from exploiting both ends of a revenge porn website must be making Brittain very desperate indeed. You'd think he would have learned from the last time he sent out a bogus takedown request that the only thing that does is create more criticism. Brittain's name is irrevocably toxic and he can't seem to think of a better way to clean up his destroyed reputation than tossing a self-serving DMCA hail mary. With these 23 own-goals on the record -- along with a new wave of criticism headed his way -- Pustule Nickelback McHitler's Brittain's best bet at this point is probably to just exit the internet altogether.

from the questions-questions dept

By now, you should be mostly aware of the DMCA's "notice-and-takedown provisions." Most elements of it have been litigated to death, and while there are still a few points of contention (such as what really constitutes "red flag knowledge"), a lot of the key points are pretty well settled in the law. But, there are always opportunities for new questions to be raised -- and it's kind of incredible that this particular one hasn't been that widely litigated: just how quickly does a service provider need to act in pulling down content upon receipt of a takedown notice? The law 17 USC 512(c) just says "expeditiously":

upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

But... what is "expeditiously?" It's a vague enough word, subject to lots of interpretation, and now we've got a case that is likely to test if "48 hours" is expeditiously. It involves fight promoter Square Ring (owned by boxer Roy Jones Jr.) suing live streaming video site UStream, over its supposed failure to takedown livestreams of a boxing match between Roy Jones Jr. and Omar Sheika from March of 2009. Square Ring claims it warned UStream ahead of time and then sent three DMCA takedowns during the event. However, UStream responded to Square Ring two days later, saying the links in the takedown notices had been taken down. Square Ring says that's too long and UStream should lose its DMCA safe harbor protections. It also argued a bunch of other things, all of which the court rejected. However, on the question of "is 48 hours expeditiously" the court wouldn't make a summary judgment and wants the case to go to trial.

The court easily rejected Square Ring's argument that the DMCA safe harbors somehow don't apply to live broadcasts. Square Ring argued that such events are not covered because Congress "could not have foreseen the possibility of streaming live events on the internet in 1998 when the legislation was passed." But, as UStream pointed out (and the court agreed) that's just wrong:

Square Ring cites no evidence for this assertion while UStream provides a number of
examples of live internet broadcasts occurring in the years prior to 1998.... The court is not persuadeded that Congress intended to exclude live broadcasts from safe
harbor protection and will proceed through the statutory analysis.

However, on the expeditious question, the court basically says "well, no one's really looked at this, so let's go to trial."

The court is persuaded, not by Square Ring's lengthy and convoluted attempts to utilize 17
U.S.C. 411(c) nor by its self-serving declarations, but rather by the complete lack of legal
precedent for this factual situation. The court is not prepared to make a factual determination as
to whether UStream acted expeditiously as required by the safe harbor provision. A number of
questions of fact exist as to what precisely was done during the time period in which UStream
received the March 17, 2009 notices and the ultimate takedown on March 23, 2009, a full fortyeight
hours after the DMCA-compliant notices were received.

For the above reasons, the court concludes that there are material issues of fact that warrant
proceeding to trial.

As Eric Goldman points out in the link above, a jury trial has a high likelihood of a bad result for UStream -- in part because a jury may assume (totally incorrectly) that it's magically easy for a company like UStream to find and kill off "infringing" live stream events. People who don't quite understand how these things work always seem to assume that it's easy to just "know" what's infringing and to kill it, without recognizing (1) the massive scale of streaming videos that need to be analyzed and (2) the risk of taking things down too fast, thereby killing perfectly legitimate content. As Goldman notes:

I assume Square Ring opted for a jury trial, and a jury would be a dangerous place for UStream. Outsiders can easily imagine that Internet companies can make copyright infringing activity magically disappear at no cost with zero turnaround time (see, e.g., every Congressional hearing on online copyright issues). I think the risks are even higher for a pay-per-view plaintiff, where the video goes from hot news to mostly archival information quickly, perhaps in a matter of hours. Further, a jury is more likely to evaluate UStream’s handling of these takedowns in isolation, instead of considering the many hundreds of thousands of other takedowns–many of which are bogus or tendentious–that UStream processed in a reasonable manner. A good lawyer can help tell UStream’s story to the jury, but I think it will be hard for a jury to absorb that message.

Given that, I wonder if UStream will just look to settle the case to make it go away. It would be nice to get a ruling on the record that gives companies the necessary flexibility, but I fear that the result could be the opposite -- setting up some arbitrary and impossible standard (especially for smaller companies), which expects near real-time responses to takedown notices.

from the gronk-gronk-gronk dept

I'm a big fan of fan fiction for several reasons. I think it's awesome how a community can be so devoted to a particular something as to want to author their own creations around that something. I think it's cool when the original creators manage to use fan fiction as a mode to interact with their fans. Perhaps most of all, I love how fan fiction allows creative people to get silly on the subject of their work with parody and humor. For these reasons and more, I was particularly pleased when Amazon announced that they wanted to allow sales of this kind of work.

I'm less pleased to find that there are many ways in which those works can be taken down. See, Lacey Noonan is an author who goes out of her way to create parody novellas making fun of the romance genre. She recently released her short book about a housewife wanting to have sex with an NFL player.

Yes, the story quite prominently features Rob Gronkowski, New England Patriots tight end, and general all-around party boy. You know, this friggin' guy.

Yo soy fiesta. Yo soy fiesta. I am party. That's as Gronkowski as it gets. And it makes him a great subject for a laughable romance novella parody. Unfortunately, A Gronking To Remember has been removed from the Amazon store. Why? You see that small patch on Gronk's sleeve on the cover of the book that reads "MHK"? It's a tribute patch for the wife of the Patriot's owner and it appears to be the reason the book was taken down.

We're told the online retailer pulled the book because someone — perhaps the Patriots or the National Football League — objected to the book jacket, specifically the photo of Gronkowski that features the "MHK" patch on his uniform. (The team began wearing the patch in 2011 after the death Myra Kraft, wife of Patriots owner Robert Kraft.) In an e-mail, author Lacey Noonan told us she hadn't anticipated any problem with the Gronk picture.

"I didn't understand at the outset that Robert Kraft wouldn't want Myra Kraft and her philanthropical works associated with this," Noonan said in the e-mail. "Total newbie ignorance on my part. I believe — and hope — that's the only problem anyone has with the book since it is such obvious satire and parody."

If you look at the cover with an eye towards intellectual property concerns, you can clearly see how the team or the NFL might have concerns over the team's uniform appearing on the jacket, though it also seems clear that measures were taken to minimize how much the team logo and the uniform appears at all. But for this to be over the patch? And for that patch to result in the takedown of a hilarious piece of parody? It seems that someone needs to explain what rights exist for whom on a patch that consists of three letters, because we can't lose this literary treasure to that.

from the three-strikes dept

YouTube's ContentID system gets mocked quite frequently for bogus takedowns, which happen with unfortunate frequency. The latest, as pointed out by YouTube star Total Biscuit is that Blizzard's own damn YouTube channel for World Championship Series StarCraft, WCSStarCraft, was down for at least 40 minutes earlier today. If you visited the page during that time, you saw the following:

A YouTuber who follows Totalbiscuit, Ryan Wyatt, quickly noted that the company was "working on it", but it still looks bad -- and again raises questions about why YouTube has given in to pressures from copyright holders to do excessive things like shutting down accounts based on accusations and matches, all too often leading to these kinds of results. Yes, the DMCA requires a process for removing accounts of repeat infringers, but that should require them to be actual infringers.

from the collateral-damage dept

Oh, Microsoft. The company has now admitted that it ended up sending a bunch of DMCA takedown notices on non-infringing videos, all because someone had posted product keys in comments to those videos. To its credit, Microsoft has apologized and said that it has "taken steps to reinstate legitimate video content and are working towards a better solution to targeting stolen IP while respecting legitimate content." That's all well and good, but this seems like the kind of thing that they should have done long before issuing obviously bad takedowns. This is the kind of thing that happens when you have a tool like the DMCA notice-and-takedown provision that makes it just so damn easy to censor content. Those issuing the takedowns do little to nothing to make sure the content being removed actually infringes. They just use either automated means or someone rushing through the process with little review, sending off takedowns willy nilly with no real concern about how they might kill off perfectly legal content. It still boggles the mind that a basic notice-and-notice regime couldn't suffice to handle situations like this. That and making sure that those issuing bogus DMCA notices receive some sort of real punishment to give them the incentive to stop sending bogus takedowns.

from the just-another-accident dept

We've heard some folks claim that all these bogus takedown notices we write about are just "anomalies" rather than a pattern of abuse of the law for the purpose of censorship. And yet, there are more and more examples every day. The latest one is particularly bizarre. IFPI (the international version of the RIAA) has apparently been issuing a series of bogus takedown notices to get Kim Dotcom's album "Good Times" taken down off of his own site, Mega. That's... quite incredible. This does not appear to be a strange attempt to hide Dotcom's music, but it looks to just be pure sloppiness on the part of the IFPI issuing misguided takedowns. That is, the IFPI takedown notice lists a totally different song (and it turns out this is the second time this has happened to Dotcom's album in the past month). As short-sighted as the IFPI is, it would take an other wordly level of stupidity to directly target Dotcom's music with a bogus takedown. Even the IFPI must know that that would backfire badly. The story that it's an "accident" makes much more sense.

Dotcom filed a counternotice and the album was back up after about a day of being down. However, the real issue here is just how common this sort of thing is. And it comes from the same folks who like to (1) insist that it's "easy" to tell infringing works from non-infringing works and (2) demand that entire sites be blocked based just on their say-so that those sites are "illegal." Of course, Dotcom has some experience on that front, seeing as his own website, Megaupload, was shut down nearly three years ago, despite no adversarial hearing in a court of law on whether or not it was legal.